Kenya: ICC Rejects Ruto, Sang Request for Disclosure

The International Criminal Court has rejected a request by Eldoret North MP William Ruto and journalist Joshua Sang that the prosecution discloses whether it will rely on the same witnesses it used at the confirmation hearings.

The two are among four Kenyans accused of perpetrating crimes against humanity during the post-election violence of 2007-08. The Trial Chamber V judges ruled last week that the prosecution is not obligated to release the information before the January 9, 2013 deadline for filing the full list of witnesses. They also ruled that the defence had not given enough reason for the Chamber to grant the request.

"The prosecution is not obligated to give any preliminary indication to the defence before that date, nor is the Chamber satisfied that the defence identifies any development since the Schedule Decision which justifies modifying the disclosure deadline. As such, the Chamber rejects the Request," the judges said.

They added that the prosecution is entitled to consider and, as it sees fit, reconsider which witnesses it wishes to call before disclosing its witness list to the defence in January.

"It is a matter for the prosecution, having regard to the limited nature of the information sought by the defence and its apparent initial willingness to provide the requested information, whether to reconsider its current position," the judges said.

On November 9, Ruto and Sang wrote to the judges asking that the prosecution be ordered to indicate if it intends to rely on confirmation witnesses 1, 2, 4, 6 and 8 at trial.

The two told the judges that in September, the Prosecution had agreed to provide this information but subsequently changed its position in November.

"The defence is unable to prepare for the start of trial in an efficient, effective and meaningful manner without such an indication at this late stage," Ruto and Sang told the judges.

On November 26, the prosecution responded saying that the request is essentially asking the court to reconsider the deadlines set earlier by the court adding that the defence failed to show any "material change in circumstances".

The prosecution also submitted that it "is not prepared to make" a final indication on which witnesses it is relying on and that it "has proceeded according to the timetable previously set by the Chamber. It added that it has made a legitimate assumption that it can make its final determination after it finally evaluates the pool of witnesses and assesses how, within the entirety of the available evidence, "to most efficiently and effectively present its case".

Meanwhile, Stephen Lamony an international justice expert says the African Union should halt the expansion of the jurisdiction of the African Court on Human and People's Rights to cover international crimes.

Lamony a Situations Adviser with the Coalition for the International Criminal Court said the AU has a weak budget and infrastructural frameworks as well as the tendency of leaders to protect their own.

"With the cost of a single international criminal trial estimated at nearly $20 million (Sh1.7 billion) -- almost double the combined approved 2009 budgets of the AU Commission and the African Court -- financing is a major issue. The African Court does not have the funding or infrastructure necessary to successfully prosecute international crimes; efforts to secure funding or build infrastructure would take years, allowing the current culture of impunity in Africa to flourish," he added.

Instead he called on individual states "uphold their obligations to cooperate with the ICC, and strengthen national capacities and political will to prosecute perpetrators".

Kenya, which has two cases related to the 2007/08 post-election violence at The Hague-based ICC, was among the countries that were pushing to have the African Court's mandate expanded.

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